Simons et al. v Minister of Public Safety et al.
Earlier this month, Pivot had our long-awaited day in the Ontario Superior Court of Justice, where we intervened alongside our coalition partners in a precedent-setting case about the right of prisoners to access life-saving prison needle exchange programs (PNEP).
As part of a coalition with the Vancouver Area Network of Drug Users (VANDU) and West Coast Prison Justice Society (which operates Prisoners’ Legal Services), we argued that the lack of effective access to PNEP in Canada is unconstitutional, violating prisoners’ equality right under the Canadian Charter of Rights and Freedoms. Led by pro bono counsel Dan Sheppard (of Goldblatt Partners LLP), our coalition joined the Applicants and four other interveners in calling for effective, evidence-based PNEP as essential healthcare in all federal prisons.
We expect the Court to deliver its judgment in the coming months, but you can read on to learn more about the case and our argument.
Pro bono counsel Dan Sheppard of Goldblatt Partners LLP and Pivot Staff Lawyer Caitlin Shane at the Ontario Superior Court of Justice in Toronto | March 6, 2020
About the Case
At the heart of the Simons case is a fight for the healthcare rights of federal prisoners.
Does the Canadian government’s severe restriction on confidential and effective access to prison needle exchange programs violate the life, liberty, security, and equality interests of prisoners?
We argue it does.
The Applicants comprise four HIV organizations and Steven Simons, a former prisoner who was infected by Hepatitis C (HCV) and exposed to the risk of HIV infection while incarcerated as a result of inadequate access to sterile injection equipment.
Click here to read the Applicants’ full submissions
The all-too-common experience of the Applicant, Mr. Simons, is precisely why domestic and international experts and advocates have for decades pressured Correctional Services Canada (CSC) to ensure access to PNEP. These programs are proven to decrease needle-sharing and in turn prevent the spread of bloodborne infections. Rather than take up these recommendations, however, CSC has chosen to rely on ineffective and dangerous “bleach programs,” which provide bleach as a harm reduction measure to clean drug injection equipment. This approach persists despite the United Nations Office on Drugs and Crime (UNODC) Guidelines stating that the use of bleach is unethical and despite a warning from CSC’s own advisory board over twenty years ago that bleach does not adequately protect against HIV/HCV transmission. Not surprisingly, the HIV prevalence rate for federal prisoners is some ten times the rate for the general Canadian population, and the rates of needle-sharing and HCV continue to soar throughout the prison system.
Photo: Caitlin Shane | Applicants and advocates for prisoners’ healthcare rights gathered outside the Court, shortly before the hearing was adjourned | December 9, 2019
In addition to ignoring calls for effective PNEP, the federal government has made repeated efforts to delay a proper hearing on the matter, which was first filed in 2012. Since then, we have continued to fight against procedural delays, and for government accountability. In 2018—likely motivated by this litigation—CSC conceded to a slow-moving rollout of pilot PNEP in a few select prisons.
Why the current PNEP is not enough
The federal government’s implementation of limited pilot PNEP is a step in the right direction, but it is not enough. To date, only a handful of prisons across Canada provide such services, and as the Applicants and interveners argued last week, these pilot programs are sorely inefficient and ineffective.
Prison needle exchange programs are essential healthcare.
Prison needle exchange programs are essential healthcare. They should be characterized, designed, and implemented like other forms of healthcare in the prison system - confidentially, without stigma, discrimination, or judgment, and under the direction of CSC Health Services, not prison security staff.
The PNEP currently on offer through the pilot program is exceptionally securitized. Prisoners seeking access to the program must undergo a “threat/risk” assessment, which requires a warden to approve their participation irrespective of clinical need. PNEP participants are moreover subject to multiple daily “visual inspections” and their access to kits is heavily limited, despite the fact that many prisoners will use drugs multiple times a day and thus have to re-use equipment. This securitization poses obvious health, safety, and confidentiality risks and is otherwise a clear barrier to access. It flies in the face of an evidence-based drug policy amid an opioid epidemic that kills thousands of people in Canada each year, including people in prisons.
The persistence of austere restrictions on PNEP is a testament to the stigma that continues to plague our state facilities and services. There is no reason to exceptionalize the delivery of health care to prisoners who use drugs via harsh securitization. PNEP must be low-barrier and properly within the spectrum of healthcare services.
It’s totally contradictory - CSC says “use these programs” but then they punish you.
No one is better placed to explain the inefficacy of CSC’s current approach than people who are directly impacted. SK was recently released from one of the few prisons in Canada where PNEP is offered:
"On one hand, you’re offering to give us something for harm reduction - this needle exchange program is a harm reduction measure. Yet, on the other hand you’re putting it down in our paperwork and that shows up when we talk to our case management team to request support or appear before the National Parole Board of Canada. We are then punished for our involvement in the “drug subculture.” Using the program will be used against us to show that we are “actively involved” and “seeking out” or “immersing ourselves in” the drug subculture. These labels can and will have disciplinary consequences. When you’re labeled as someone who is actively involved in the “drug subculture” you will not receive support for community-based programs because CSC will hold your drug use against you. Making use of this program inside an institution actually undermines people seeking harm reduction.
It’s totally contradictory - CSC says “use these programs” but then they punish you. We know the guards don’t like the program, and because of this they will try to get the program removed - this means they could give people a hard time trying to access it, or conduct extra searches, or write up observation reports that claim inmates were “under the influence.” Guards have their forms of intimidation, coercion - of everything. Believe me, I’ve seen this before - when guards wanted smoking banned from the institutions they would lay charges against inmates and bring up personal concerns about “second-hand smoke.” They are so savvy - they will take a positive program like this and turn it into a negative thing. Even though the needle exchange program is designed for the best interests of inmates and staff alike, guards are turning it into harm alone. The current approach has taken the “reduction” right out of it." - SK
SK was released from a women’s federal penitentiary in January 2020. At the time of her release, no one had accessed the program in her institution, due to the possible disciplinary measures they would incur.
Our Argument: how PNEP prohibitions and restrictions violate prisoners’ equality rights
As a coalition, Pivot, VANDU, and Westcoast Prison Justice Society made the case that prohibitions against or restrictions on PNEP disproportionately harm individuals along lines of sex, race, and “disability”—in particular, women, Indigenous people, and people who use drugs.
In other words, while it harms all prisoners to deny access to clean needles, it harms some more than others. Women, people experiencing addiction, and Indigenous people are already more likely to be exposed to HIV or HCV, more likely to share or re-use needles, and more likely to be incarcerated (with the exception of women). The fact that these groups require needle exchange programs the most means they also suffer the most under the current restrictive regime. This, we told the Court, violates section 15 of the Charter, which guarantees equal benefit and protection under the law.
After our day in Court we are left wondering: how can our federal government continue to call for reconciliation with Indigenous peoples; gender equity; and a public health approach to drug use all the while fighting, tooth and nail, since 2012 to keep essential healthcare out of the hands of people who use drugs in prisons?
We demand an end to heavy-handed and securitized PNEP. We want easy, confidential, and effective harm reduction in prisons today! We are hopeful that the Court heard our movement’s calls. We will keep you posted once a decision is delivered.
Special thank you to Dan Sheppard and of course to the Applicants. We are indebted to Steven Simons, Canadian HIV/AIDS Legal Network, Prisoners with HIV/AIDS Support Action Network, Canadian Aboriginal Aids Network, and Catie for bringing this important case forward.
Photo Credit: Canadian HIV/AIDS Legal Network
We are able to intervene in cases like this because of people like you. When you donate to Pivot you enable advocacy informed by the expertise of people with lived experiences. Thank you!
In 2012, this important Constitutional challenge was filed by Applicants Steven Simons, Canadian HIV/AIDS Legal Network, Prisoners with HIV/AIDS Support Action Network, Canadian Aboriginal Aids Network, and Catie. The case was adjourned in September 2018 after the Attorney General of Canada attempted to have it dismissed. In December 2019, our counsel Dan Sheppard (of Goldblatt Partners LLP), will explain to the Ontario Superior Court of Justice how a refusal to permit effective access to prison needle exchange programs will disproportionately and unconstitutionally harm individuals along lines of sex, race, and “disability”—in particular, women, Indigenous people, and people who use drugs.
There is abundant evidence demonstrating the efficacy of prison needle exchange programs, which minimize the need to re-use, share, or create makeshift syringes and in turn help prevent the spread of bloodborne infections. A refusal to ensure their effective implementation is entirely at odds with the public health approach to drug use that our federal government has publicly touted since 2016, not to mention Canada’s international human rights obligations, which put a duty on government to protect the health of all prisoners—in part through providing essential healthcare. The fact that the Liberal government has already implemented prison needle exchange programs in two federal institutions suggests that this case and the efforts of advocates involved in it are succeeding. But it is not enough. The roll out of services is too slow and we share the Applicants’ grave concerns about the effectiveness and adequacy of these particular programs. Learn more about the case here: www.prisonhealthnow.ca/
On International Overdose Awareness Day, we remember and fight for those we have lost to a senseless war on drugs
We demand evidence-based solutions, not fear-based drug policy!
Drug prohibition has utterly failed in its aims. People will always use drugs; but with virtually no access to a safe and regulated drug supply, they risk death by toxic policy. As governments across the world pledge allegiance to the failed War on Drugs, we grieve thousands. We cannot support a system that drives drug use further underground, frustrates access to critical health services, churns poor and racialized people through a violent criminal justice system, and continues to ignore the valid reasons why people use drugs. Our work is based on the unceded territories of the Musqueam, Squamish, and Tsleil-Waututh Nations and cannot separate this toxic policy from the violence of settler-colonialism.Read more
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On April 1, 2019, the Director of Public Prosecutions directed federal Crown prosecutors to minimize detentions for breaches of bail conditions, in part by no longer imposing the following bail conditions on people experiencing addiction:
- ‘Abstinence’ conditions, which criminalize people who possess and use illicit drugs;
- Prohibitions on carrying ‘drug paraphernalia’, including pipes and syringes, which impede access to life-saving harm reduction equipment and healthcare; and
- Area restrictions (or “red zones”), which banish people from the spaces, services, and communities they rely on.
Bail conditions are court orders imposed on people who are charged with an offence, but who are not incarcerated. While conditions are intended to address the particular circumstances of an accused and the offence at issue, the majority of people we work with are subject to broad “behavioural conditions” designed to control their everyday activities. For example, someone charged with a drug-related offence might be released on bail with conditions that they not possess drugs or even the drug paraphernalia (harm reduction equipment) that allows for safer use. Someone charged with an offence might also be “red zoned”—or prohibited from being in a geographic area, oftentimes a city block or an entire neighbourhood, and the services located within. As one participant put it:
[The red zone is] where all your services are. That’s where your food is, that’s where your doctors are, that’s where mental health is, that’s where the library is, that’s where your harm reduction is… That’s where basically any kind of service for street people or homeless or low income [people], that’s where it is.
For people living at the intersections of homelessness, drug use, and class-based oppression, these bail conditions make daily activities and interactions more dangerous and near-impossible. Bail conditions have a particularly negative impact on Indigenous and Black communities, who are already subject to over-policing.Read more
At Federal Court of Canada, Pivot Legal Society and the Canadian Drug Policy Coalition successfully defend access to harm reduction and health care
(Photo credit: Peter Kim | From leftt to right: Pivot Legal staff lawyer Caitlin Shane and Monique Pongracic-Speier, QC, of Ethos Law Group LLP at Federal Court of Canada | December 10, 2018)
This past February, the Honourable Justice Richard Mosley rendered his judgement on a judicial review application to challenge three Health Canada-approved supervised consumption sites in downtown Edmonton. At issue were the competing interests and concerns of the Chinatown and Area Business Association (CABA) and people who use drugs whose lives and safety depends on accessing health care.
Community groups opposed to life-saving supervised consumption have long been a barrier to setting up these sites across Canada, which are already inundated with numerous bureaucratic and political roadblocks. We felt it was critical to appear before the Court on this matter to explain why supervised consumption is an imperative health service that cannot be dictated by community opinions and fears rooted in stigma.
That is why we represented the Canadian Drug Policy Coalition (CDPC) as an intervenor in CABA’s legal challenge—a challenge based on the unfounded notion that it was not adequately consulted in the Minister’s decision to approve these health services. Our lawyer Caitlin Shane and Ethos Law Group’s Monique Pongracic-Speier (QC) argued on behalf of the CDPC that under the law, third party non-applicants are not entitled to “procedural fairness” in the case of supervised consumption site approvals. In other words, a community organization is not owed the right to weigh in on such matters because they are principally health care decisions.Read more
Pivot Legal Society and Canadian Drug Policy Coalition successfully defend supervised consumption at Federal Court of Canada
For Immediate Release
February 28, 2019
The precedent-setting decision protects public health and harm reduction efforts from unnecessary barriers and interference from third parties
Vancouver, BC – This week, the Honourable Justice Mosley released his decision on a judicial review application brought forward by Edmonton’s Chinatown and Area Business Association (CABA). CABA challenged the approval of three desperately-needed supervised consumption sites in downtown Edmonton, asserting that it was not adequately consulted in Health Canada’s decision to approve the services.
In December 2018, the Canadian Drug Policy Coalition (CDPC), represented by Pivot Legal Society’s Caitlin Shane and Ethos Law Group’s Monique Pongracic-Speier (QC), intervened in the case, arguing that CABA and other third parties do not have a mandatory right to weigh in on the approval of consumption sites in Canada. Instead, public health and safety should be the principal concern of the government in considering applications, as this would best protect the Constitutional rights to safety and security for people who use drugs accessing life-saving services.Read more
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Pivot Legal Society applauds Supreme Court of Canada decision to strike down mandatory victim fine surcharge
For Immediate Release
December 14, 2018
Vancouver, BC – In a 7 to 2 ruling, the Supreme Court of Canada has struck down the mandatory victim fine surcharge. Pivot Legal Society applauds this decision, which will alleviate the unjust and cruel penalty previously imposed on members of marginalized communities, including in the Downtown Eastside.
In April 2018, Pivot Legal Society, along with lawyers Graham Kosakoski, Naomi Moses (Rosenberg Law), and DJ Larkin intervened in the case to argue that a mandatory victim fine surcharge amounts to cruel and unusual punishment. The Supreme Court decision directly referenced our submissions and indicated:
"therefore [the surcharge] violates Section 12 of the charter, because its impact and effects create circumstances that are grossly disproportionate to what would otherwise be a fit sentence, outrage the standards of decency, and are both abhorrent and intolerable."Read more
Pivot Legal Society and Canadian Drug Policy Coalition defend access to harm reduction at Federal Court of Canada
For Immediate Release
December 10, 2018
A precedent-setting legal challenge that could affect harm reduction efforts across Canada
(Photo credit: Peter Kim | Pivot Legal drug policy lawyer Caitlin Shane and Monique Pongracic-Speier, QC, Ethos Law Group LLP at Federal Court of Canada | December 10, 2018)
Edmonton, AB – Today Caitlin Shane, Pivot Legal Society’s drug policy lawyer, and Monique Pongracic-Speier, QC, of Ethos Law Group LLP, argued on behalf of the Canadian Drug Policy Coalition (CDPC) to protect public health and the Charter rights (Section 7 right to life, liberty, and security of the person) of people who require supervised consumption services.
In October, Edmonton’s Chinatown and Area Business Association brought forward a legal challenge (judicial review) to Health Canada’s approval of supervised consumption services in downtown Edmonton, arguing it was not adequately consulted in the decision. If the challenge is successful, the decision could impact how supervised consumption sites across Canada are approved; namely, by adding unacceptable delays to the provision of life-saving health services.Read more